PITTA LLP Labor, Employment & Employee Benefits Law Firm Life Post-Janus: Upcoming SCOTUS cases that could affect your union 42 nd Annual National Labor Management Conference February 14, 2019-February 19, 2019 The Diplomat Beach Resort Hollywood, Florida
PITTA LLP Labor, Employment & Employee Benefits Law Firm Mark Janus v. American Federation of State, County, and Municipal Employees, Council 31, et al. No. 1 6 -1 4 6 6, 5 8 5 U.S . _ ( 2 0 1 8 )
PITTA LLP Labor, Employment & Employee Benefits Law Firm The Road to Janus How d id we g et h ere? • Abood v. Detroit Board of Education , 431 U.S. 209 (1977) • Agency shop arrangement upheld by Court. • Chicago Teachers’ Union v. Hudson , 475 U.S. 292 (1986) • Established minimum process requirements for fair share fee collection. • Lehnert v. Ferris Faculty Association , 500 U.S. 507 (1991) • Considered which union activities are chargeable to agency fee payers.
PITTA LLP Labor, Employment & Employee Benefits Law Firm The Road to Janus How d id we g et h ere? • Knox v. SEIU , 567 U.S. 298 (2012) • Special assessment imposed on non-members for ballot referendum lobbying campaign requires both a specific notice beyond standard Hudson notice and requires agency fee payers to affirmatively opt in. • Harris v. Quinn , 573 U.S.__, 134 S. Ct 2618 (2014) • Court found home health care aides, who were considered employees of both the state of Illinois and the individuals for whom they provided care, were not true public sector employees and could not be compelled to pay fair share fees. Abood not applicable. • Friedrichs v. California Teachers Association , 578 U.S.__, 136 S. Ct. 1083 (2016) • Direct challenge to Abood and agency shop system resulted in a 4-4 decision, with the conservative justices prepared to overturn Abood .
PITTA LLP Labor, Employment & Employee Benefits Law Firm Janus v. AFSCME Council 31 et al. No. 1 6 -1 4 6 6, 5 8 5 U.S . _ ( 2 0 1 8 ) • The Court’s decision was handed down at the end of its term along ideological lines in a 5-to-4 decision, with Justice Alito writing for the majority. • Justice Alito: “[F] undamental free speech rights are at stake. Abood was poorly reasoned. It has led to practical problems and abuse. It is inconsistent with other First Amendment cases . . . And no reliance interests on the part of public- sector unions are sufficient to justify the perpetuation of the free speech violation that Abood countenanced for the past 41 years. Abood is therefore overruled.” • The Court ruled unequivocally that the right to free speech includes the right to refrain from speaking, referring to it as “compelled speech.” Court found requiring non-members to pay agency fees was unconstitutional compelled speech. • The Court declared: “[N]either an agency fee nor any other payment to the union may be deducted from a non- member’s wages, nor may any other attempt to collect such payment, unless the employee affirmatively consents to pay.”
PITTA LLP Labor, Employment & Employee Benefits Law Firm Janus v. AFSCME Council 31 et al. No. 1 6 -1 4 6 6, 5 8 5 U.S . _ ( 2 0 1 8 ) • Majority opinion forecasts the the types of challenges that were filed in anticipation of Janus and that have since been filed: • Unions received a “consider able windfall…under Abood for the past 41 years. It is hard to estimate how many billions of dollars have been taken from nonmembers and transferred to public- sector unions in violation of the First Amendment. Those unconstitutional exactions cannot be allowed to continue indefinitely.” • “Designating a union as the employees’ exclusive representative substantially restricts the rights of individual employees.” This is “itself a significant impingement on associational freedoms that would not be tolerated in other contexts.”
FR PITTA LLP Post-Janus Litigation Labor, Employment & Employee Benefits Law Firm Exclusive representation Retroactive refund of agency fees • Reisman v. Associated Faculties of Univ. of • Riffey v. Rauner, No. 1:10-CV-02477 (N.D. Ill. 2017) Maine, No. 1:18-cv-00307 (D. Me. 2018) • Danielson v. Inslee, No. 3:18-cv-05206 (W.D. Wa. 2018) • • Crockett v. NEA- 13 Alaska, No. 3:18-cv-00179 Babb v. California Teachers Ass’n, No. 8:18 -cv-00994 (C.D. Cal. 2018) • Pellegrino v. New York State United Teachers et al., No. 2:18-cv-03439 (E.D. (D. Alaska 2018) N.Y. 2018) • Martin v. California Teachers Ass’n, No. 2:18 - • Smith v. New Jersey Educ’n Ass’n, No. 1:18 -cv-10381 (D. N.J. 2018) cv-01951 (E.D. Cal. 2018) • Diamond v. Pennsylvania State Educ’n Ass’n, No. 3:18 - cv-00128 (W.D. Pa. 2018) • Uradnik v. Marietta Education Ass’n, No. • Akers v. Maryland State Educ’n Ass’n, No. 1:18 -cv-01797 (D. Md. 2018) 2:18-cv-00628 (S.D. Ohio 2018) • Lee v. Ohio Educ’n Ass’n et al., No. 1:18 -cv-01420 (N.D. Ohio 2018) • Smith v. New Jersey Educ’n Ass’n, No. 1:18 - • Hoekman et al. v. Education Minnesota et al., No. 0:18- cv-01686 (N. Minn. 2018) cv-10381 (D. N.J. 2018).
PITTA LLP Labor, Employment & Employee Benefits Law Firm Riffey v. Rauner No. 1 :1 0 -CV -0 247 7 ( N.D. Ill. 2 0 1 7 ) • Following the decision in Harris v. Quinn , plaintiffs sought a refund of agency fees that had been paid by home health aides. • Harris had determined that Abood was not applicable to the health aides because they were not true public employees. • Plaintiffs were seeking class action status for a class of 80,000 and refund of more than $30 million in past agency fees.
PITTA LLP Labor, Employment & Employee Benefits Law Firm Riffey v. Rauner No. 1 :1 0 -CV -0 247 7 ( N.D. Ill. 2 0 1 7 ) • District and Circuit courts had denied class action status. • The day after SCOTUS issued its opinion in Janus , it granted cert. in this case, vacated the lower court decision, and remanded to the 7th Circuit for reconsideration in light of Janus . • On December 6, 2018, 3 judge panel of the 7th Circuit affirmed its prior decision denying class action status, reasoning that each class member would have to prove that he or she had objected to paying agency fees. • A petition has been filed for the 7th Circuit to rehear the case en banc.
PITTA LLP Labor, Employment & Employee Benefits Law Firm Danielson v. AFSCME Council 28, AFl-CIO 1 8 -c v-0 5 2 06 -RJB ( W.D. W ash . Nov. 2 8 , 2 0 1 8 ) • Washington State employees sought retroactive refunds of agency fees. • Case brought pursuant to 42 U.S.C §1983 which allows monetary recovery for constitutional violations “under color of” law. • A “good faith defense” can shield §1983 liability. Here, agency fees were collected under a valid state law and Abood was still good law, so claims were dismissed. • Plaintiffs indicated that they would appeal. 10
PITTA LLP Labor, Employment & Employee Benefits Law Firm Belgau v. Inslee et al. 1 8 -c v-0 5 6 20 -RJB ( W.D. W ash . F eb . 1 5 , 2 0 1 9 • Washington State employees who were union members challenged maintenance of dues deduction authorization provision. • Provision provided for 10 day opt out period to withdraw from payment of dues. • If bargaining unit member did not opt-out during the specified time, even if he or she withdrew from union membership, dues would continue to be deducted. Here, plaintiffs, following Janus , withdrew from union membership but did not opt-out during the window period. 11
PITTA LLP Labor, Employment & Employee Benefits Law Firm Belgau v. Inslee et al. 1 8 -c v-0 5 6 20 -RJB ( W.D. W ash . F eb . 1 5 , 2 0 1 9 Effective immediately, I hereby voluntarily authorize and direct my Employer to deduct from my pay each period, the amount of dues as set in accordance with the [Union] Constitution and By-Laws and authorize my Employer to remit such amount semi-monthly to the Union (currently 1.5% of my salary per pay period not to exceed the maximum). This voluntary authorization and assignment shall be irrevocable for a period of one year from the date of execution or until the termination date of the collective bargaining agreement (if there is one) between the Employer and the Union, whichever occurs sooner, and for year to year thereafter unless I give the Employer and the Union written notice of revocation not less than ten (10) days and not more than twenty (20) days before the end of any yearly period, regardless of whether I am or remain a member of the Union , unless I am no longer in active pay status in a [Union] bargaining unit; provided however, if the applicable collective-bargaining agreement specifies a longer or different revocation period, then only that period shall apply. This card supersedes any prior check-off authorization card I signed. I recognize that my authorization of dues deductions, and the continuation of such authorization from one year to the next, is voluntary and not a condition of my employment.
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